Burton and Repatriation Commission (Veterans' entitlements)
[2017] AATA 606
•8 May 2017
Burton and Repatriation Commission (Veterans' entitlements) [2017] AATA 606 (8 May 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/0823
Re:Delwyn Burton
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member J Sosso
Member Dr G MaynardDate:8 May 2017
Place:Brisbane
The decision under review is affirmed
..........................[Sgd]..............................................
Senior Member J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – war widow pension – where Applicant was de facto partner of the veteran – Deledio test – Statement of Principles – balance of probabilities – where kind of death was cerebrovascular accident – where kind of death was related to the veteran’s hypertension – salt consumption – hypothesis – whether veteran’s hypertension was caused by his salt consumption – whether veteran’s salt consumption was caused by his defence service – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlement Act 1986 (Cth) ss 68, 70, 120, 120A, 120B, 196A, 196BCASES
Hill v Repatriation Commission [2004] FCA 832; 82 ALD 60
Repatriation Commission v Smith (1987) 15 FCR 327
Briginshaw v Briginshaw (1938) 60 CLR 336
Kattenberg v Repatriation Commission [2002] FCA 412; 73 ALD 385
Repatriation Commission v Warren [2007] FCA 866
Repatriation Commission Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711; 37 AAR 383
Fogarty v Repatriation Commission [2003] FCAFC 136; 37 AAR 363
Benjamin v Repatriation Commission (2001) 70 ALD 622
Hill v Repatriation Commission (2005) 85 ALD 1
Elliott v Repatriation Commission [2002] FCA 26; 73 ALD 377
Aldcroft and Repatriation Commission [2002] AATA 432
Oakman and Repatriation Commission [1999] AATA 125
Ovenden and Repatriation Commission [2000] AATA 80
Woodger and Repatriation Commission [2003] AATA 39
Salter and Repatriation Commission [2003] AATA 231SECONDARY MATERIALS
STATEMENT OF PRINCIPLES NO. 66 OF 2015
STATEMENT OF PRINCIPLES NO. 64 OF 2013REASONS FOR DECISION
Senior Member J Sosso
Member Dr G Maynard8 May 2017
INTRODUCTION
On 12 March 2015 Ms Delwyn Burton (the Applicant) lodged a claim for acceptance that the death of her deceased partner, Mr James Budd, was related to his defence service and therefore that a war widow’s pension was payable under the Veterans’ Entitlement Act 1986 (the Act) – Exhibit1 T8 pp.50-56.
Part IV of the Act makes provision, inter alia, for the payment of pensions to persons who served in peacetime with the Defence Forces and their dependants.
To be eligible for a pension under Part IV, a person must have had continuous full-time defence service for a period of at least three years between 7 December 1972 and 7 April 1994 – s 68.
Mr Budd served in Australian Army from 23 July 1974 until 26 July 1977 and from 6 September 1978 until 12 March 1984 – Exhibit 1 p.1.
It is not contested that Mr Budd rendered eligible defence service during these periods of time.
Mr Budd passed away on 11 November 2009 aged 57 years. His Death Certificate lists his cause of death as intracranial haemorrhage and the duration of the illness as 24 hours – Exhibit 1 T7 p.49.
The hypothesis relied upon by the Applicant (Applicant’s Statement of Facts and Contentions (ASFC) para 5) is as follows:
(a)as a result of Mr Budd’s experiences during his defence service, he developed a salt consumption habit;
(b)his salt consumption habit was causative of him developing hypertension;
(c)his hypertension was in turn causative of him suffering from an intracranial haemorrhage which caused his death.
Mr Budd is listed in the Death Certificate as being married to a person other than the Applicant, but separated from her although they were not divorced as at the date of death.
The Applicant was the de facto partner of Mr Burton, and it is not contested that there was such a partnership from approximately September 2007 until his death – Exhibit 1 T7 p.51.
The Applicant attached to her claim a Statement that was jointly signed by her and Mr Don Jones, Advocate. This document deals with the Applicant’s contentions as to how Mr Budd’s defence service caused or contributed to his death. So far as is relevant the following contentions were made (Exhibit 1 T7 p.47):
“…this Claim is based on her late Husband’s lifestyle whilst a member of the Army and beyond.
In particular, I refer to the veteran’s excessive use of:
Salt; and
Consumption of animal fats.
Salt. Mrs Burton, whilst she would never hazard a guess at the amount involved, i.e. 15 grams as detailed in the relevant Statement of Principle, she does most certainly maintain that her husband, James Budd consistently (on a daily basis) used an abnormal amount of salt. She recalls that James would often ask if she had enough salt in the pot, used a large amount on the meal before and, at times, re-salted the meal as the level of food lowered. Obviously this happened again if he had seconds; he invariably did so.
Salads and some fruits such as oranges, mandarins, pineapples and avocadoes usually got the same treatment.
Animal Fats. Mrs Burton has advised that the veteran husband loved all meats be they standard steak, stews, pork deli meats and offal. He ate large amounts and at least one hot meal a day and usually two when bacon and eggs were taken into account.
The veteran also loved his vegetables (especially potatoes), breads of all kinds along with desserts, cakes and biscuits.”
The Applicant’s claim was rejected by the Repatriation Commission on 18 April 2015 – Exhibit 1 T9 p.57. In reaching this conclusion, the Delegate of the Commission made the following observations (pp. 59-60):
“Mrs Burton has contended that the veteran’s death was caused by suffering from hypertension at the time of his death and that hypertension could have been caused by the ingestion of salt supplements as a result of Mr Budd’s period of eligible service…
A person cannot be addicted to; or dependent on, salt as they may be to other substances such as alcohol and tobacco.
I note that Dr Tim Bresseleers from Beaudesert in a medical report dated 30 March 2009 advised that Mr Budd was diagnosed with hypertension in 1983 whilst he was still serving with the Defence forces. Therefore, any increased salt consumption after service did not cause hypertension.
I cannot be satisfied that salt consumption during Mr Budd’s periods of eligible service was of the sufficient level to cause hypertension and the consumption being due to service, not merely occurring during eligible service.”
The Applicant applied for a review of this decision by the Veterans’ Review Board. The Board was reasonably satisfied that the “kind of death” in Mr Budd’s case was cerebrovascular accident – Exhibit 1 T2 B5. The Applicant contended that Mr Budd had hypertension caused by his defence service and, in particular, his excessive consumption of salt which commenced whilst he was in the Army. In rejecting this contention the Board said (Exhibit 1 T2 B5-6):
“22. The Board notes that while there is material that points to Mr Budd having consumed salt in the quantities required by the SoP, there was no evidence pointing to a service requirement for him to consume salt at the levels he did. Additionally the Board notes that the applicant was forewarned of the consequences to his health if he continued to consume high levels of salt. Accordingly, the Board was not satisfied that the applicant meets this factor.”
The Applicant now applies to the Tribunal under the Administrative Appeals Tribunal Act 1975 for a review of this decision – Exhibit 1 T1 A1.
A hearing was held on 5 April 2017. The Applicant was represented by Mr A Harding of Counsel, and the Respondent was represented by Mr B Williams. The Applicant attended in person and gave evidence under oath. Two other witnesses were also called and gave evidence by phone.
The sole issue to be determined by the Tribunal is whether the Applicant is eligible to receive a pension because Mr Budd’s death was defence-caused.
THE LEGISLATION
At the outset, it is important to note that the Act is beneficial in nature, and numerous Federal Court judgments have held that its provisions are to be construed liberally – e.g. Hill v Repatriation Commission [2004] FCA 832; 82 ALD 60 per Mansfield J at para 44.
As the death of Mr Budd was not war-caused, the Act requires the Tribunal to determine the issue before it according to the standard of “reasonable satisfaction” – s 120(4). This equates to the civil standard of proof, or, in more common parlance, on the balance of probabilities.
The task required of the Tribunal was explained by Beaumont J in the Full Federal Court decision of Repatriation Commission v Smith (1987) 15 FCR 327 at pp. 334-335 as follows:
“It will be remembered that s. 120(4) provides that the Commission shall decide the matter ‘to its reasonable satisfaction’. As has been noted, the Tribunal thought that this degree of satisfaction was:
“possible… when it appears from the nature of the veteran’s prior employment that there is a real possibility, as distinct from a fanciful one, that remunerative work for more than eight hours a week would have been likely”…
s. 120(4) speaks in terms of a reasonable satisfaction. This expression has a settled meaning, at least in a curial context. In Bringinshaw v Bringinshaw (1938) 60 CLR 336, Dixon J, dealing with the civil standard of persuasion, said (at 362):
“it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature of and consequence of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are consideration’s which must affect the answer to the question whether the issued has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect references” (Emphasis added)…
s. 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigiation… it should have asked itself whether on the facts of the case, it was, persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other…”
Claims lodged on or after 1 June 1994 are subject to the Statement of Principles (SoP) scheme. In this matter the relevant statutory provision is s 120B which deals with claims that relate to defence service other than hazardous service. The Tribunal is required to determine the matter before it to its reasonable satisfaction in accordance with any relevant SoP issued by the Repatriation Medical Authority (RMA).
The RMA is established by s 196A and its functions are set out in s 196B. Where the RMA is of the view that there is sound medical and scientific evidence that a particular disease can be related to, inter alia, defence service, it must determine an SoP in respect of that kind of disease. The SoP sets out the minimum factors that must exist and which of those factors must be related to service rendered by a person before a reasonable hypothesis has been raised connecting the particular disease to the circumstances of service – see Kattenberg v Repatriation Commission [2002] FCA 412; 73 ALD 385 at para 8 per Emmett J.
However, SoPs cannot used be for diagnostic purposes. This was explained by Kiefel J (as she then was) in Repatriation Commission v Warren [2007] FCA 866; 95 ALD 606 as follows:
“24. The function of the SoP, in general terms, is to identify the minimum factors which must be present in the circumstances of the veteran’s case, to provide the necessary linkage between the disease suffered and operational service. The factors necessarily refer to the disorder in question. The principal purpose of the definition of each of PTSD and alcohol dependence is to permit a determination as to whether the SoP applies to the condition as found by the Tribunal, presumably upon the basis of a clinical diagnosis. The diagnostic criteria for the disorders in the SoP are said to be ‘those specified in DSM-IV, and are as follows’. The criteria are intended as part of the definition for the purpose of the application of the SoP.
25. The anterior or threshold question for the Tribunal is whether the veteran suffers from the disease as claimed. It is a distinct and separate statutory question, in the nature of a precondition to any entitlement to pension…”
The Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) very helpfully set out the steps to be followed by the Tribunal. The Court set out four steps, but as the fourth relates to a war-caused scenario, only the first three are relevant for present purposes (p.97):
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority… If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service… If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.”
As helpful as the Deledio methodology is, it does not inform the Tribunal of all the matters that need to be addressed. In this regard reference can be made to the decision of Selway J in Repatriation Commission v Hancock [2003] FCA 711.
After explaining that there may be multiple medical conditions that cause a particular death (para 8), Selway J said (para 9):
“…there is necessarily at least two extra steps before step one of the Deledio methodology. The first of these is self-evident. It is necessary to establish the pre-conditions for a claim other than causation, on the balance of probabilities. In this case those pre-conditions were that Mr Hancock was a veteran, that the respondent was his widow and that Mr Hancock had died. Secondly, in order to ascertain that a SoP applies it is necessary to identify the ‘kind of injury’ or the ‘kind of death’ suffered by the veteran: see s 120A(2) and (4) of the Act. With most injuries and probably even most diseases this will usually be obvious enough (which is probably why the step was not mentioned in Deledio). But cases such as the present, the identification of the ‘kind of death’ is the critical step in the analysis. In determining the ‘kind of death’, proof is on the balance of probabilities: see s 120(4) of the Act and see Fogarty v Repatriation Commission [2003] FCAFC 136 at [34]; Benjamin v Repatriation Commission (2001) 70 ALD 622 at [53] – [54].”
Section 70 of the Act provides that a pension is payable under Part IV for injury, disease or death which is due to service as a member of the Australian Defence Forces.
Injury, disease or death is “defence caused” if it is due to an occurrence, or arose out of or was attributable to or was aggravated by defence service, or is deemed defence caused – s 70(4) and (5).
CONSIDERATION
Introduction
Mr Budd served in the Australian Army, with a break of around 12 months, from 1974 until 1984. The vast bulk of that time was spent in Australia. However, between 3 September 1975 and 24 November 1975 he was deployed as part of 2/4RAR to serve at the RAAF Base at Butterworth in Malaysia – Exhibit 1 T3 p.1.
Adopting the approach outlined by Selway J in Hancock, the evidence presented establishes the following:
(a)Mr Budd was a veteran who had eligible service;
(b)The Applicant was at the date of Mr Budd’s death his de-facto partner;
(c)Mr Budd died on 11 November 2009.
We now outline and consider the evidence presented, and will then deal with two further issues:
(a)The kind of death suffered by Mr Budd; and
(b)The application of the relevant elements of the Deledio methodology.
Evidence of the Applicant
It is the Applicant’s contention that Mr Budd developed a habit of consuming excessive amounts of salt as a result of his service in Malaysia. The primary evidence for this comes from the Applicant in her written and oral evidence. In her Statement of June 2016 (Exhibit 2) she states:
“21 Jim told me that he had served in the Australian Army and that he had spent three months in Malaysia at Butterworth Air base and that is where he commenced taking salt because of the hot humid tropical climate and that maintained his high level of salt usage ever after.”
The Applicant confirmed this during cross-examination. She testified that she met Mr Budd in 2003, and didn’t know him previously. While she had met members of his family she did not have meals with them.
The Applicant also testified that Mr Budd started taking salt tablets whilst he was serving in Malaysia and continued to take a salt tablet daily, usually in the afternoon, until his death. The salt tablets consumed by Mr Budd were purchased from the chemist.
In addition, the Applicant testified to Mr Budd’s poor dietary habits. He would consume Kentucky Fried Chicken two to three times a week, and always add salt. Further, he would add salt to tins of stew which he consumed.
In line with the Applicant’s testimony that she did not have meals with members of Mr Budd’s family, she testified that she had no knowledge of his family’s salt consumption habits.
Mr Harding submitted (Applicant’s Outline of Submissions in Reply (AOSR) para 6) that the Tribunal should find the evidence of the Applicant reliable. He went on to submit:
“She gave her evidence in a matter-of-fact manner and refrained from speculation about matters about which she had no knowledge. She took particular note of her husband’s salt consumption habits and inquired of him as to their provenance. There is no reason for the Tribunal not to accept evidence about these matters.”
We agree with Mr Harding’s submission. The Applicant was a witness of credit, and she gave her evidence in a low key and convincing manner. We have no reason not to accept what she said under oath.
The difficulty, however, is that her recollection of what Mr Budd said to her, is that it is based on the recollections of a man about relatively minor events (taking salt in Malaya over a two month period in 1975) of what was then about thirty years ago.
The Applicant’s case is substantially based on what amounts to a gossamer thread of memory of the deceased Mr Budd.
Evidence of Mr Jones
The Applicant tendered in evidence a written statement given by Peter Allen Jones. Mr Jones served for a short time with the Citizens Military Forces and for 20 years with the Australian Regular Army (ARA). He was discharged from the ARA in 1999 at the rank of Sergeant – Exhibit 3 paras 1 and 2.
Initially Mr Jones served as a Rifleman with 2/4 RAR and 3 RAR but later transferred to the Corps of Transport. On two occasions he was a member of Rifle Company Butterworth, Malaysia. The first occasion was between 3 December 1980 and 4 March 1981 and the second was between 25 August 1982 and 7 December 1982 – Exhibit 3 paras 3 and 4.
On both tours to Malaysia Mr Jones’ routine was the same. The first four weeks was in camp and then he travelled for exercises with the Malaysian Army on the Thai border. Mr Jones stated (paras 7-9):
“…The jungle along the Malaysian/Thai border was very thick and it was extremely hot and steamy moving through the jungle. I remember losing 4 kilograms in weight over a period of just 3 days simply from loss of fluid. We would sweat so much that you would see the sweat stains on our jungle greens especially under the arms where we would sweat heavily.
8. When we were on exercise, we would take salt tablets every day. Whilst on exercise, the salt tablets were issued to us as part of our ration packs. I recall that these ration packs were leftovers from the Vietnam War and they were still in use until about 1989. Some of them still contained cigarettes. They all contained salt tablets.
9. We would take one salt tablet per day when on exercise which we would drop into our water bottles. We were also given a cordial type drink which was heavily salted and hard to drink but we drank it nevertheless.”
Mr Jones went on to state that when he wasn’t on exercises he was given malaria tablets and one salt tablet each weekly pay day by the Platoon Sergeant (para 10).
Under cross-examination Mr Jones testified that he joined the ARA in 1979, but did not know Mr Budd during his defence service. He testified that while he had not served in Butterworth in the mid-1970s, some of members of Company had served there at that time. He informed the Tribunal that he was told that when they served in Malaysia in the mid-1970s they were deployed to the jungle for longer periods of time and more often. He testified that in 1975, with the fall of South Vietnam to the Vietcong, there was heightened readiness for possible deployment. In short, because of the tense situation at that time, soldiers were required to be suitably trained for conflict contingencies.
Mr Jones testified that while he got used to using salt tablets whilst in Malaysia, on his return to Australia he did not take salt tablets unless he was in tropical conditions.
Evidence of Dr Palazzo
The last witness called was Dr Albert Palazzo, Consultant Historian. Dr Palazzo also prepared a document entitled “Report on the Military Service of James Arthur Budd” dated 3 October 2016 which was admitted into evidence as Exhibit 4.
Dr Palazzo’s report was designed to illustrate the “likely salt consumption at Butterworth” – Exhibit 4 p.2. The document prepared is a very learned and illuminating piece of research. The oral evidence given by Dr Palazzo was also learned and he presented as a witness not only of learning but of objectivity. In short he presented as a professional whose research and evidence should be given weight.
The difficulty confronting Dr Palazzo is set out in the second paragraph of his report (Exhibit 4 p.2):
“Budd did not leave a personal record of his military service”.
In the absence of any direct recollections from Mr Budd, Dr Palazzo sets out under the heading “Budd at Butterworth” a short history of Australia’s involvement in Malaya from the 1950s to the 1980s. He notes that from 1 September 1973 the ARA provided to Butterworth an infantry company on a three month rotation, which was known as Rifle Company Butterworth (RCB). After outlining the short history mentioned, Dr Palazzo notes (p.3):
“I was unable to find a personal recollection of the type of tasks that RCB undertook”.
The only primary material he was able to study was the statement of Mr Jones which was provided to him by Mr Harding’s instructing solicitors.
Dr Palazzo then states (p.3):
“I was unable to find any recollections from Budd’s rotation to Butterworth”.
In short, Dr Palazzo, despite his very best endeavours, was unable to locate any primary material either from Mr Budd, or any of his ARA contemporaries specifically about Mr Budd’s service in Malaysia, or even more generally from ARA service personnel who served in RCB around that period of time. All that Dr Palazzo could locate was a 3 RAR Newsletter that had a scant reference to 3 RAR in Malaysia; but the newsletter was published in March 2008 and only referred to a then-current deployment – Exhibit 4 Document J. Accordingly, Dr Palazzo’s report, necessarily, has these limitations.
Dr Palazzo’s next chapter is headed “Budd and Salt Consumption” but again there are limitations with the utility of this section. Dr Palazzo notes (p.5):
“I was unable to find a description of the rations provided specifically for Butterworth”.
Both in his report, and during his oral evidence, Dr Palazzo admits that the material he has collated on salt consumption by military/defence personnel is primarily material which relates to the Second World War or Vietnam.
It is not contested that the Australian Army and Australian Government have long been cognisant of the need for salt supplementation for soldiers serving in the tropics.
One document issued in 1943 to Australian soldiers advised (Exhibit 4 Salt 12): “Don’t forget to eat salt in the jungle”.
Another document tendered into evidence (Exhibit 6) is a copy of what constituted a Combat Ration for one man which was issued during the Vietnam War. Under the heading: “The following items are common to all menus” is “Salt 1 x ¼ oz”.
A later document (Exhibit 7) outlining combat rations, but which is expressed in metric units, and, which, accordingly, would have issued at any time from 1972 onwards, also states that 7 grams of salt (which equates to ¼ oz) was part of the daily rations. However, the instructions for use specifically provide that salt above this amount was to be consumed when a person was engaged in strenuous activity. The only warning was that extra salt was not to be consumed until there was extra water, as it was harmful to take extra salt without extra water.
Dr Palazzo correctly highlights that the ration packs issued to service personnel in the Vietnam War all contained salted food together with supplementary salt. The amount issued to soldiers was in excess of normal requirements, but was deemed required for those engaged in strenuous activities in very hot conditions. As Dr Palazzo concludes (p.5):
“First, the food provided in the ration was already salted. Second, the supplemental salt was provided as a measure to maintain good health in the tropics.”
Medical History of Mr Budd
The Tribunal has been presented with various medical reports of the Applicant that were prepared during his years of service. They provide a useful profile of his state of health for the decade 1974 – 1984.
Mr Budd’s medical examination of 19 July 1977 states that he weighed 64 kg and was 175 cm in height. His blood pressure reading was 140/100 and there were no abnormal medical diagnoses – Exhibit 1 T4 p.6. In the Discharge History Questionnaire which Mr Budd completed on the same date he noted that he suffered from migraines – Exhibit 1 T4 p.7.
In his “Entry Medical History Questionnaire”, which Mr Budd completed on 22 August 1978, he answered in the negative to the question whether he had high blood pressure (Q23), heart disease (Q24) and also answered in negative to the question whether he had severe headaches or migraines (Q 37) – Exhibit 1 T4 p.39.
Mr Budd was also medically examined that day. That report states he then weighed 70 kg, his blood pressure reading was 125/70 and no medical abnormalities were reported or detected – Exhibit 1 T4 p.38.
Mr Budd’s next Medical Board Examination Record is dated 1 December 1981 and he was examined at Oakey. By this time Mr Budd’s weight had increased to 74 kg he was diagnosed with abnormalities to the ears and Eustachian tubes. His blood pressure reading was 120/70 but no other medical issues were noted – Exhibit 1 T4 p.37.
On 25 June 1982, Mr Budd was admitted to the 1st Military Hospital for a surgical procedure on his nose – Exhibit 1 T4 p.36.
It is not clear from the material before the Tribunal why this procedure was performed. The operation was performed in two parts. The first was a Septoplasty, which is usually performed to correct a nasal septal deviation which interferes with free breathing. The second part was cautery of the inferior turbinate. The latter may have been performed to correct a tendency of nasal bleeds or to reduce tissue overgrowth, which also inhibits breathing.
It is most unlikely that these procedures had any connection with Mr Budd’s hypertension; rather, the operation was probably needed to correct a local nasal problem.
Mr Budd was discharged on 1 July 1982. His blood pressure pre operation was 140/100, post operation was 130/85-90 and on discharge was 130/100. The hospital report states: “No operative or post-op complications” – Exhibit 1 T4 p.36.
By the first quarter of 1983 Mr Budd was receiving ongoing treatment for hypertension. On 17 January 1983 he was examined by Lieutenant Colonel Donaldson (Dr Donaldson) who noted that he had difficulty breathing, had a sore throat and his blood pressure reading was 150/100 – Exhibit 1 T4 p.34.
Two days later Dr Donaldson again examined Mr Budd and noted a blood pressure reading of 150/100. In his Medical Attendance and Treatment Report Dr Donaldson wrote, inter alia (Exhibit 1 T4 p.33):
“To Reduce weight
[To Reduce] Salt”.
Dr Donaldson again examined Mr Budd on 25 January 1983, and recorded a blood pressure reading of 140/100 – Exhibit 1 T4 p.32.
He was admitted to the 1st Military Hospital on 14 March 1983. The Inpatient Case Notes of 14 March 1983 contain a number of observations including those set out below (Exhibit 1 T4 p.27):
“His wt (weight) & BP have slowly risen together over the years.
Drinks 10 – 15 cups tea/coffee/day with 2 spoons of sugar in each.
Always has his hand in a bag of Barley Sugar.
Doesn’t drink to excess
“ “ smoke
Is trying to ↓ salt intake”.
Amongst the recommendations for treatment of Mr Budd whilst in hospital, the Doctor making the above comments noted (p.28):
“No salt shaker on tray at meal time”.
Similar observations were made by Dr Ash in the In Patient Summary Report of 17 March 1983 (Exhibit 1 T4 pp 25-26):
“Admitted for management of hypertension.
Multiple readings in the past 12 months.
Vary 150 – 130 (usually the higher readings).
110 – 85
No treatment instituted.
Investigations to time of admission CXR, ECG, FBC
IVP – all Normal.
Family history of hypertension – mother.
No past history to suggest renal pathology.
No history to suggest CVS or CNS decompensation.
Main factor contributing to his hypertension appears to be his diet.
Takes 20-30 spoons of sugar per day just in his coffee.
Eats Barley Sugar relentlessly.
Consumes 2-3 large bottles beer per day.
Weight on admission 77 kg.
BP on admission 140
100
Rest of exam normal.
Treated with 1000 cal diet and Moduretic tabs.
Reluctant to start B blockers because of the history of wheeze when he gets a cold and on exercise.
Investigations – urea, elects, M/S/V.
BP on discharge 120
100…….”
Mr Budd was examined on a regular basis thereafter by various Doctors, but, in particular by Dr Donaldson. Medical Reports tendered show the following blood pressure readings (Exhibit 1 T4 pp. 11-24):
DateBlood Pressure
08.06.1983 140/100
17.06.1983 130/90
24.06.1983 130/90
15.07.1983 125/90: 130/95 (Sitting)
04.08.1983 140/95
26.10.1983 130/90
02.11.1983 140/100
08.11.1983 140/95 (Lying): 150/105 (Standing)
18.11.1983 130/105 (Lying): 140/105 (Standing)
13.12.1983 130/90
20.01.1984 140/100 (Sitting): 150/110 (Standing)
27.01.1984 145/95
03.02.1984 130/100 (Lying): 125/95 (Sitting): 150/110 (Standing)
13.02.1984 145/110
Dr Donaldson noted in his last examination of 13 February 1984 that Mr Budd’s “BP still not well.”- Exhibit 1 T4 p. 11.
The final medical report is dated 27 February 1984 and followed Mr Budd’s discharge medical examination. The Medical Officer noted that Mr Budd was suffering from hypertension and was being treated with Moduretic and a no salt diet – Exhibit 1 T4 p.9.
Deledio Methodology
In reaching our conclusion, we have been guided by the Deledio methodology as explained by Selway J in Hancock. We emphasise the word “guided” as we are mindful that we are not required to proceed through the steps outlined in Deledio in a mechanistic manner. As useful as the methodology is, it is not a substitute for ensuring the requirements of the Act are followed, and that the Tribunal fulfils its fact-finding mandate – Hill v Repatriation Commission (2005) 85 ALD 1 at pp.16-17.
Kind of Death
The next issue to be determined by the Tribunal is the kind of death suffered by Mr Budd.
It is not contested that the cause of Mr Budd’s death was intracranial haemorrhage. Further, it is not contested that the “kind of death” was cerebrovascular accident.
Applicable Statement of Principle
We now turn to the question of whether there is or are applicable SoPs, and if so, to identify it or them.
SoP No 66 of 2015 “Cerebrovascular Accident” defines (Cl 3) that term to mean:
“a rapid loss of brain function, caused by neuronal death or dysfunction due to impairment of the blood supply to the brain, and comprises cerebral ischaemia or intracerebral haemorrhage presenting clinically as a transient ischaemic attack, transient symptoms with infarction, or stroke…”
Clause 6 lists those factors which must exist before it can be said that, on the balance of probabilities, death from cerebrovascular accident is connected with the circumstances of a person’s particular service. The first of those factors (Cl 6(a)) is having hypertension within five years before the clinical onset of cerebrovascular accident.
We note that Clause 8 provides that where a factor under Clause 6 includes an injury or disease to which a different SoP applies, the factors of the different SoP apply. That is, here, if there is an SoP applicable to hypertension, then the Tribunal should look to whether any of the factors in the hypertension SoP apply.
Mr Harding (Outline of Submissions (OS) para 12) draws our attention to SoP No 64 of 2013 – Hypertension. Clause 6(c) of this SoP provides that one of the factors that must exist before it can be said that, on the balance of probabilities, the hypertension is connected with the circumstances of a person’s relevant service is
“consuming at least 15 grams (250 millimoles) of salt per day on average for at least the six months before the clinical onset of hypertension.”
Mr Harding submits (OS para 13) that the medical evidence before the Tribunal points to the onset of Mr Budd’s hypertension being circa 1982-1984. Mr Harding goes on to contend (OS para 14) that the Tribunal should find that Mr Budd suffered from hypertension before the clinical onset of cerebrovascular accident.
We agree with these contentions. The undisputed evidence is that Mr Budd was suffering from hypertension from approximately 1982. His blood pressure readings throughout 1983 until his discharge from the Army in 1984 were unacceptably high. The frequency and nature of the medical reports, and the care taken, in particular by Dr Donaldson, highlight that Mr Budd’s hypertension was an issue that was being closely, and appropriately, monitored by Army medical personnel.
Hypothesis
The hypothesis relied upon by the Applicant has previously been set out.
As was explained in Deledio, the Tribunal’s initial task is to consider the material before it and determine if it ‘points’ to a hypothesis connecting the death with the circumstances of service rendered by the person. No fact finding is required at this stage.
The material before the Tribunal could be said to raise such a hypothesis.
The next step is to determine if the hypothesis is a reasonable one. Again, this entails no fact finding. The task required of the Tribunal was helpfully explained by Stone J in Elliott v Repatriation Commission [2002] FCA 26 (at para 25) as follows:
“In attempting to determine if the material before the Commission raises an hypothesis connecting the veteran’s condition with the particular service, and if any such hypothesis is reasonable, the Tribunal is required to consider and analyse that material. The exercise is not concerned with the truth of the assertions in the material and should not be confused with an exercise in fact finding. The task is similar to scrutinising a pleading to determine if the elements of the alleged cause of action have been pleaded. A statement of claim may be struck out as failing to disclose a cause of action without any consideration of whether the facts pleaded can be substantiated. A hypothesis can be dismissed as not reasonable if the material before the Commission does not raise the essential elements of the hypothesis.”
After carefully considering all the material before the Tribunal we formed the view that the hypothesis is not “fanciful, impossible, incredible, too remote or too tenuous” – Aldcroft and Repatriation Commission [2002] AATA 432 at para 62. The hypothesis is a reasonable one.
Findings of Fact and Causation
The critical stage in this matter is step four of the Deledio methodology, as modified to have regard to the fact that s 120B and not s 120A applies, and the Tribunal must be satisfied to the standard of “reasonable satisfaction”. The meaning of that term has been previously discussed.
It is at this stage of the analysis that fact finding occurs.
The medical evidence clearly shows that Mr Budd was suffering from hypertension from approximately 1982. The evidence also clearly shows that Mr Budd had a salt dependency habit in the years leading up to his death in 2009.
However, the key questions that must be answered are these:
(a)whether Mr Budd had a salt dependency problem whilst enlisted; and, if yes
(b)whether it was a result of his defence service that he developed a salt dependency problem.
There are three evidentiary issues which mean we cannot be satisfied, to the appropriate standard, that either question should be answered in the affirmative.
First, the Applicant met Mr Budd in 2003 having not known him previously. When the Applicant met Mr Budd, almost twenty years had passed since he had left the Army. The Applicant has provided us with evidence as to his lifestyle and dietary habits from 2003 until his death, but she has no first hand memories of his time in the defence service, or indeed his lifestyle for almost two decades thereafter. In her Statement, she recounts that “Jim told me” that he commenced taking salt because of the hot humid climate in Malaysia and he maintained that level of salt usage ever after
Mr Williams, on behalf of the Respondent (Respondent’s Outline of Submissions (ROS) at para 23), contends that “the Tribunal is not able to assess the contribution of the alleged increase in intake of salt during the relevant period” based on the testimony of the Applicant. We agree with this submission, because in essence the Applicant was only able to provide evidence of the Applicant’s lifestyle and eating habits two decades after his defence service.
Second, Mr Jones did not serve with Mr Budd in Malaysia. Mr Jones did not serve with him during their respective defence service, and, in fact never knew him personally. Accordingly, Mr Jones was not able to assist the Tribunal with first hand evidence about the dietary and lifestyle habits of Mr Budd during his defence service.
When giving evidence, Mr Jones recounted that the daily salt tablet he took whilst he was serving in Malaysia was half the size of a Panadol tablet. Mr Williams submits (ROS para 27) that the salt tablets described by Mr Jones can be distinguished from the salt tablets provided in World War II, both in size and quantum.
Third, Dr Palazzo was not able to provide source material about the salt intake of defence service personnel at RAAF Butterworth in Malaysia during the relevant period. The extensive material attached to his report related primarily to World War II and, to a lesser extent, Vietnam.
The Applicant submits (ASFC para 11) that the Tribunal can be expected to take “judicial notice” of the fact that servicemen serving in the tropics during World War II, Vietnam and other tropical locales were given salt tablets and encouraged to consume salt to combat the loss of salt through sweating.
We accept from the evidence presented, particularly the scholarly research of Dr Palazzo, that this is an accurate statement of what occurred in the period 1939 to 1972, that is from the beginning of the Second World War to the conclusion of Australia’s involvement in South Vietnam. We also accept, from the evidence of Mr Jones, that the consumption of salt was encouraged whilst defence personnel were serving in jungle conditions in Malaysia in the 1970s and 1980s.
Mr Harding drew our attention to a number of Tribunal determinations which dealt with veterans consuming excessive amounts of salt.
In Oakman and Repatriation Commission [1999] AATA 125 the veteran died in 1994 from the effects of hypertension. He served in the Australian Army in World War II and worked as an Army cook. The Tribunal accepted that in the 1940s, 1950s and 1960s there was a culture in tropical communities, and, in particular in the Army operating in the tropics, of taking excess salt in food and in taking salt tablets. Salt tablets were issued as part of the soldiers’ kits and soldiers were instructed to take the tablets.
The evidence presented in Oakman from his family was that over three decades after World War II he consumed excessive amounts of salt. While he was serving in the Army his blood pressure was normal (para 4). The continued excessive consumption of salt resulted in Mr Oakman suffering from severe hypertension resulting in a series of strokes in the early 1960s.
A number of elements distinguish this matter from these proceedings:
(a)Mr Oakman did not suffer from hypertension whilst serving in the Army;
(b)His blood pressure was normal on discharge from the Army in 1946;
(c)Mr Oakman served 922 days in New Guinea;
(d)There was evidence that he had a “normal’ salt intake before joining the Army;
(e)As a cook he had access to crystalline salt;
(f)On leaving the Army, Mr Oakman married and his wife observed his dietary and salt intake habits over nearly five decades;
(g)He owned and operated a pineapple and banana farm north of Brisbane, and cleared the land for the farm himself. It was extremely hard work in hot conditions;
(h)The Tribunal was presented with “abundant” evidence of Mr Oakman’s excessive salt consumption over a three decade period;
(i)Mr Oakman developed hypertension at a relatively young age due to his excessive salt intake.
Mr Harding also referred us to the Ovenden and Repatriation Commission [2000] AATA 80. This was another matter involving a deceased World War II serviceman who served in the tropics. The key elements of this matter were:
(a)Mr Ovenden served in the South West Pacific for 889 days;
(b)His wife met him in late 1941 when he was nearly 21 and only recently enlisted;
(c)His wife ate frequently at this mother and grandparents’ home and Mr Ovenden’s salt consumption was normal;
(d)After World War II his salt consumption increased;
(e)Mr Ovenden put salt on everything, even fruit;
(f)Mrs Ovenden would purchase 400-500 g of salt every 2-3 weeks;
(g)Mr Ovenden told his wife that he was given salt tablets in the Army and salt was “good for you”;
(h)Mr Ovenden had no apparent hypertension during World War II, but high blood readings commenced in 1952.
Accordingly, in both Oakman and Ovenden, the factual matrix before the Tribunal was quite different from the current proceedings. The distinguishing features are as follows:
(a)In Oakman and Ovenden the respective veterans served lengthy periods in the tropics where they ingested significant amounts of salt;
(b)In both matters there was no history of excessive salt intake before enlistment;
(c)In both matters the respective wives were able to give firsthand accounts of the veterans’ food habits over long periods, and, in the case of Ovenden, the salt intake before the veteran was posted to the tropics;
(d)In neither case was there a history of excessive salt consumption prior to being posted to the tropics;
(e)In neither case did the veteran have a history of hypertension, and in both cases hypertension was recorded sometime after they left the Army.
Clearly in Ovenden, heavy salt consumption had been encouraged or directed for a period of almost three years – 13 times longer than the period Mr Budd served in Malaysia. Further, the amount of salt consumed daily (a minimum of 12 grams, as was required to meet a factor in the SoP relevant in that case) was greater than the 7 grams in the Vietnam era ration packs.
Mr Williams contends (ROS para 26) there is no reliable evidence pointing to Mr Budd consuming the salt provided in his ration pack, either added to food or as a supplement to his drinking water.
We have proceeded on the assumption that Mr Budd would have consumed the salt provided to him in Malaysia. To proceed on a contrary assumption would be to impute to Mr Budd behaviour not only inconsistent with his record of a soldier who had exemplary service and obeyed lawful commands. In short, the submission of Mr Williams is counter-intuitive.
When perusing the evidence the first point is that there are a number of contemporary references to Mr Budd’s excessive use of sugar and sweets. In the In Patient Summary of 14 March 1983 specific reference is made to Mr Budd consuming 20 – 30 spoons of sugar daily and eating Barley Sugar “relentlessly”. There are also references to him drinking 10-15 cups of tea and coffee each day as well as two to three large bottles of beer.
In comparison, references to his salt intake are what one would expect of a person suffering from hypertension. All of the medical references refer to reducing salt intake, not having a salt shaker on a tray at meal time, having a salt free diet and the like.
The obvious question that this poses is whether those references were made because Mr Budd had a salt consumption problem at that time, or whether it was standard medical practice to reduce or stop salt consumption for patients with hypertension.
In answering this question we have been assisted by Mr Williams drawing our attention to Woodger and Repatriation Commission [2003] AATA 39.
The Tribunal in that matter was presented with a report from Dr Oldfield which set out what he said was the standard medical treatment for hypertension prior to 1990 (at para 21):
“Treatment at that time, from the consensus of opinions in the profession in the early years, in particular up to about 1990, would not have involved pharmaceutical agents. However, he would have been encouraged to lose weight, take on a very active lifestyle with regular daily exercise, abstain from salt in food – both on the plate and in the cooking, to avoid salty packaged/prepared foods including fast foods and slightly more regular than annual monitoring of blood pressure to see if it actually did improve… Certainly with the state of knowledge that existed in the 1970s, I would not have felt that in the general medical community the hypertension he had would have been treated.
In the late 70s/early 80s I would have felt that he would have been encouraged strongly to undertake lifestyle changes and by the late 1980s I think he would have been on pharmaceutical/medication treatment…”
This account of standard medical treatment for hypertension in the 1970s and 1980s mirrors that given by Professor O’Rourke in the same matter (para 22):
“The Oxford Textbook of Medicine (1987) was current at the time that Mr. Woodger was discharged from the service. In this textbook Professor Sleight of Oxford pointed out the controversy about the evidence for and against drug treatment in mild hypertension (with blood pressure at rest and without previous coffee or cigarettes) at 140 – 160 mmHg cystolic and diastolic 90 – 100 mmHg. He stated the overall impression is that treatment of mildly raised blood pressure in patients without other risk factors for vascular disease may cause side effects which outweigh marginal benefits. Professor Sleight pointed out the adverse effects of cigarette smoking as being far more important than the benefits of drug therapy in mild hypertension and stressed the importance of changes in lifestyle (page 13.361)..”
We have been given no reason to doubt that this is an accurate statement of treatment for hypertension in the late 1970s and early 1980s. Indeed, the account of treatment in the 1970s/1980s is concordant with the evidence we have been presented as to the treatment Mr Budd received.
A close reading of the medical evidence provides no reasonable basis for concluding that Mr Budd was either ingesting excessive quantities of salt or had a preference for consuming salty foods whilst enlisted. The medical reports whilst highlighting his hypertension suggest that the treatment for that condition was modification of lifestyle choices, including, but not limited to, reduction of salt intake. The fact that the treating physicians targeted Mr Budd’s salt consumption does not suggest he had a salt ingestion problem, but rather, is indicative of standard medical procedure for the treatment of mildly raised blood pressure at that time and with the accepted medical procedures of that era.
Mr Harding concedes (OS para 23) that there are difficulties determining the precise quantity of salt consumed by Mr Budd on a daily basis in the period leading up to the onset of hypertension. However, Mr Harding invites us (paras 24-25) to conclude that Mr Budd was consuming approximately 2.5 teaspoons of salt each day during the requisite period because his service medical records indicate that medical staff considered he was consuming excessive salt.
As indicated we have formed a different view. There is nothing in the medical records which state clearly that any doctor formed the view that Mr Budd was ingesting excessive amounts of salt in the period 1982-1983. All that those records indicate is that when his hypertension was diagnosed, lifestyle changes were recommended, including reducing salt intake.
To put it in legal terminology: there is a temporal connection between the onset of Mr Budd’s hypertension and medical treatment which included a reduction in salt intake, but no evidence of a causal link between Mr Budd’s hypertension and his then intake of salt.
Further there is no evidence as to the amount of salt Mr Budd was ingesting. On the evidence presented, we are unable to conclude, on the balance of probabilities, that Mr Budd was consuming 15 grams (or more) of salt a day in 1982-1983.
Mr Harding also drew our attention to the following reasoning of Deputy President Muller in Salter and Repatriation Commission [2003] AATA 231 (at para 11):
“Nevertheless, if a member of the Army has been told that it is good for his health to take extra salt and the taking of the extra salt causes the veteran to develop a taste habit, or belief that salt is good for him, the root cause of the veteran’s habit of ingesting excessive quantities of salt is to be found in his Army service.”
The analysis of Deputy President Muller is undoubtedly correct, but the key point that he makes is the causal connection between the ingestion of salt whilst enlisted and the development of a habit in later years of an excessive consumption of salt. If in consideration of the evidence presented, the Tribunal forms the view, on the balance of probabilities, that there is a causal link between the two, then the foundations of the Applicant’s hypothesis are made out and the cascading elements of the hypothesis previously outlined can be evaluated in accordance with the relevant SoPs.
A reading of the evidence before Deputy President Muller in Salter highlights why he concluded that there was such a causal link. Mr Salter had operational service in Vietnam from February to July 1967. He was born in the United Kingdom and had never lived in a tropical area until his service in Vietnam. He met his wife in 1979 and he died in 1996. She was able to provide first hand evidence of his dietary habits over a 17 year period. Critically, evidence was given by Mr Mattiske who had personally known Mr Salter since 1957 and served with him in Vietnam in 1967. The following account of his evidence is compelling (para 8):
“8. The veteran’s colleague and friend, Roger Mattiske, gave the following evidence:
(a)He had known the veteran since January 1957;
(b)During their service in Vietnam they were both ordered to take four salt tablets daily in order to help preserve body fluids;
(c)He witnessed the veteran while in service and later at his home, pour salt on his hand and eat it;
(d)He noticed during the mess meals he shared with the veteran, after their service in Vietnam, that the veteran’s first move was towards the salt shaker;
(e)His own experience was that he had also developed a high salt diet after his service but had managed to reduce his salt intake 20 years ago.”
In short, Deputy President Muller was presented with direct evidence of Mr Salter’s experience in Vietnam and the link between in the ingestion of excessive amounts of salt under military orders or recommendations and the development of a habit of consuming excessive amounts of salt whilst he was enlisted and for the rest of his life. The fact that Mr Mattiske served in the Army with Mr Salter from January 1957 to January 1967, and thus could give evidence of the impact of his service in Vietnam on his dietary habits was of critical importance. Deputy President Muller was in the position of receiving direct evidence from Mr Mattiske and Ms Salter of how Mr Salter’s dietary habits changed and developed over a four decade period: 1957 – 1996.
Clearly, the evidentiary material in Salter is of different nature to that before us.
We are not satisfied, on the balance of probabilities, that Mr Budd’s service in Malaysia was the cause of his excessive salt consumption habit as witnessed by the Applicant.
We are also not satisfied, on the balance of probabilities, that Mr Budd was consuming 15 grams (or more) of salt each day prior to the onset of his hypertension.
Finally we are not satisfied, on the balance of probabilities, that Mr Budd’s salt consumption habit was the cause of him developing hypertension circa 1982-1984.
In reaching this conclusion we have had regard to the following matters:
(a)The Applicant did not meet Mr Budd for more than 20 years after the conclusion of his defence service;
(b)There is no direct evidence from Mr Budd or any of his defence service contemporaries of his dietary habits before and during his defence service;
(c)There is no evidence from any members of Mr Budd’s immediate family of his dietary habits over the period of his defence service and leading up to his death;
(d)There is no mention in any the Army medical records of Mr Budd having a habit of ingesting excess salt;
(e)The medical records indicate that Mr Budd consumed excess amounts of sugar, sweets and tea/coffee, but otherwise his diet was unexceptional for that period;
(f)The evidence of his treating physicians prescribing a reduction or cessation of his salt intake when being treated for hypertension is consistent with standard medical procedures of that time;
(g)The evidence of Mr Jones is of limited utility in reaching a conclusion on whether Mr Budd developed a salt ingestion habit from his defence service because Mr Jones did not know him and served in Malaysia six years after Mr Budd;
(h)Mr Budd was only exposed to service in the tropics for a little over two and a half months, and the bulk of that time was not spent in jungle conditions; and
(i)The amount of salt which the Army provided and encouraged/soldiers to consume in Malaysia in circa 1975 was less than that consumed by soldiers in the South Pacific in World War II.
There is a further matter to mention, although it has not played a part in reaching our decision. While there is no mention of Mr Budd having a salt ingestion habit before or after 1982 and whilst in the Army, there are references in the medical reports of his family having a history of hypertension. The In Patient Summary Report of 17 March 1983 prepared by Dr Ash states: “Family history of hypertension – mother.” – Exhibit 1 T4 p.25. Clearly, an alternative hypothesis could be developed for the onset of Mr Budd’s hypertension which does not involve the issue of the quantum of salt he was consuming whilst in the Army.
We are reasonably satisfied that Mr Budd’s habit of ingesting excessive salt was not caused by his defence service. Consequently, we are reasonably satisfied that the evidence does not raise a connection between Mr Budd’s death and his defence service.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 136 (one hundred and thirty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso, Member Dr G Maynard
...........................[Sgd].............................................
Associate
Dated: 8 May 2017
Date of hearing: 5 April 2017 Counsel for the Applicant: Mr Anthony Harding Solicitors for the Applicant: Terence O'Connor Solicitor Advocate for the Respondent: Mr Bruce Williams
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